Thursday, June 11, 2015

Just because something is in a report does not mean a judge can rely on it

R v Alcorn, 2015 ABCA 182:

[26]
As noted above, the first ground of appeal is that the sentencing
judge effectively sentenced the appellant for worse crimes than he admitted.
This ground has substance even though the Crown would submit otherwise.
Unfortunately, it would appear that due to the significant gaps in time between
appearances on this matter, the sentencing judge turned for assistance as to
what the facts of the offences were to the summaries of those offences as
contained in the expert reports that he had been provided with by consent of
counsel.

[27]
We reject the Crown submission that the fact that the provision of
the reports to the sentencing judge was unopposed by counsel for the appellant
effectively amounts to either; (a) an admission of all their content or; (b) a
waiver of any objection to their content. Numerous examples in various corners
of the law can be cited for the principle that consensual admissions of expert
opinion records can often be considered conditional, even if the conditions are
unspoken. A gate-keeping function still rests with the trial judge. Such
conditional admissions do not automatically constitute a blanket waiver or
admission, nor do they enjoin the ability of a party to challenge the opinion
thus offered (even if belatedly): see generally R v Sehkon, 2014
SCC 15(CanLII) at paras 43 to 48, [2014] 1 SCR 272; R
v Jacobs, 2014
ABCA 172 (CanLII) at paras 54 to 68, 577 AR 3; Blake
v Dominion General Insurance,2015
ONCA 165 (CanLII) at paras 53 to 62, [2015] OJ No 1218
(QL); see also, generally, Mouvement laïque québécois v Saguenay
(City), 2015
SCC 16(CanLII) at paras 103 to 111, [2015] SCJ No 16 (QL). This
is not to say that real consent by all parties might not be express or inferred
to the content, scope or flavour or opinion evidence reports in different
circumstances. But that is not this case.

[28]
The error by the sentencing judge is easily explained on this
record. This Court has previously commented on the undesirability of criminal
proceedings being segmented and churning over extended periods, having regard
in particular to risks of distortion of the fact-finding process: see eg R
v Kristenson, 2010
ABCA 37 (CanLII) at para 21, 251 CCC (3d) 372. The case at
bar was not a situation where by operation of the Criminal
Code a form of ‘supervision over time’ was authorized where a
series of reports are created and received by consent: compare R v
McDonald, 2015
ABCA 108 (CanLII) at paras 30 to 33, [2015] AJ No 303
(QL). We are satisfied that the sentencing judge was labouring under a
misapprehension caused by the passage of time.

[29]
Counsel can be of great assistance to the sentencing judge to avoid
this sort of problem. It should be no surprise that a sentencing judge might
infer from receipt of a report presented by consent that factual assertions in
it (even if otherwise subject to objection) are not in dispute: see eg R
v Lemonnier,2014
QCCA 1492 (CanLII), [2014] JQ No 8206 (QL), leave denied (2015),
[2014] SCCA No 440 (QL). Indeed, a judge is expected to consider a pre-sentence
report or similar material placed before the judge under s 726.1 of the Code:
see eg R v Virani, 2012
ABCA 155 (CanLII) at paras 11 to 14, 524 AR 328. But reports
may paint an inaccurate or confused picture: see eg R v Gnam, 2013
ABCA 254 (CanLII), 556 AR 12.

[30]
Accordingly, counsel must take responsibility for reports given to
sentencing judges in difficult cases – for that matter, in all cases,
particularly as to matters of moral culpability on the part of the offender. To
be sure, sentencing judges are not bound to interpret or characterize the
evidence provided to them, or its implications, in precisely the same way as
counsel do, whether or not there is a joint submission by counsel on the topic:
see eg R v Johnson,2010
ABCA 392 (CanLII), 265 CCC (3d) 443, 493 AR 74; R
v Gibson, 2015
ABCA 41 (CanLII), 319 CCC (3d) 115. This ability to adjudicate
is, of course, not license to make unsupportable inferences: see eg R
v Cowan, 2012
ABCA 199 (CanLII) at paras 18 to 26, 288 CCC (3d) 367, 533
AR 157; R v Moller, 2012
ABCA 381 (CanLII) at para 10, 539 AR 300.

[31]
Where facts are agreed upon by counsel, counsel should reduce those
facts to writing and ensure the agreed facts are filed with the Court so there
will not be errors as occurred here: compare R v Asp, 2011
BCCA 433 (CanLII) at para 40, 278 CCC (3d) 391 where
counsel were encouraged to “condescend to particularity”. Counsel should sort
out inconsistencies, if possible.

[32]
Counsel cannot rely on the possibility that inadmissible material
will be harmless: compare R v Bell, 2013
BCCA 463 (CanLII), at paras 34 to 38,344 BCAC 237. Counsel should
not assume that argument, and not evidence, can overcome evidential
deficiencies: see eg R v S(H), 2014
ONCA 323(CanLII), 308 CCC (3d) 27. Counsel should at the very least
make their position on disputes clear so the sentencing judge knows what the
ground rules are. Concern about reports in sentencing is not a new problem.
There have been criticisms for decades about pre-sentence reports over-shooting
agreed facts or annexing inappropriate material. The point of a report is not
advocacy but information: see eg R v Arcand, 2010
ABCA 363 (CanLII) at para 287, 264 CCC (3d) 134, 499 AR
1. An accused is entitled to a fair shake when it comes to the broad array of
information a report might contain: see eg R v Angellilo,2006
SCC 55 (CanLII) at paras 30 to 32, [2006] 2 SCR 728.